State lawyers defend handling of Texas voter citizenship review, suggest some county officials broke the law

An assistant attorney general said counties should have reviewed their lists of flagged voters to determine whether they had reason to believe the voters were ineligible before requiring them to prove their citizenship.

A top lawyer for the state says Texas did not make any mistakes or impose unconstitutional burdens on certain voters in rolling out its citizenship review.
Mikala Compton for The Texas Tribune

SAN ANTONIO — Facing three federal lawsuits challenging the legality of Texas’ efforts to review the citizenship of 98,000 registered voters, a top lawyer for the state opened up his defense in one of the cases by claiming the state had not made any mistakes or imposed unconstitutional burdens on certain voters in rolling out the review. Actually, he argued,it was certain county election officials who had acted “contrary to state law.”

In a federal courthouse Tuesday, Assistant Attorney General Chris Hilton repeatedly questioned why two local election officials — Kerr County Tax Assessor Bob Reeves and Blanco County Tax Assessor Kristen Spies — immediately sent voters who were flagged by the state letters demanding that they prove their citizenship in order to remain on the voter rolls. Hilton said counties should have first reviewed their lists to determine whether they had reason to believe a voter was ineligible.

The two voter registrars told the court their staff was simply following the state’s instructions — laid out in an official election advisory — on how to determine if those individuals were in fact U.S. citizens and therefore eligible to vote. In her reading of the state’s advisory, in which state election officials repeatedly noted they had worked to provide counties with “actionable information,” Spies said she believed that meant “that we should work the list.” She was echoed by Reeves, who indicated the state’s decision to flag those voters gave them enough reason to move forward with those notices.

That list was accompanied by press releases by the secretary of state’s and attorney general’s offices that said the voters had been “identified by [the Department of Public Safety] as non-citizens.” Attorney General Ken Paxton touted the release on Twitter with the preface “VOTER FRAUD ALERT.” President Donald Trump also tweeted about it, falsely claiming that “58,000 non-citizens voted” in Texas.

But Hilton contended the secretary of state had merely told counties they had the choice to investigate the voters or take no action — not immediately send out notices.

"Unfortunately, Mr. Reeves, I think your staff has acted contrary to state law," Hilton told Reeves, who oversees the county’s voter rolls and whose staff sent out 68 proof-of-citizenship letters the day the county received its list of voters from the state.

Reeves was among the handful of local officials who sent out such notices in the days after Texas Secretary of State David Whitley’s election advisory. The list of voters flagged for review had told the Texas Department of Public Safety they were not citizens when applying for driver’s licenses or ID cards. That data did not account for people who became citizens after obtaining those documents, which state officials have said locals should work to verify. But some county officials have said they have no way to independently verify someone’s citizenship status, so they looked to the notices as a way to investigate.

Like other local officials, Reeves’ staff was forced to rescind at least some of those notices when the secretary of state’s office informed them they had mistakenly included on the list individuals who had already proved they were citizens when they registered to vote at state offices.

That testimony came up early in a daylong hearing in federal District Judge Fred Biery’s half-full courtroom as part of legal challenge filed by the national and state arms of the League of United Latin American Citizens and Atascosa County resident Julie Hilberg, a naturalized citizen who was flagged for review. The first to file suit against the state, the plaintiffs claim the review is unconstitutional because it discriminates against naturalized citizens, who are far more likely to be caught up in the review.

They’ve asked Biery to immediately block the state’s review and order Whitley to rescind the election advisory his office sent to county officials while the case makes its way through the federal courts.

In court Tuesday, state attorneys worked to make their case that the lawsuit should be dismissed altogether or that, at a minimum, the election officials should be allowed to continue their maintenance of the voter rolls. They’ve argued that opponents’ characterization of the review as a “voter purge” amounts to a “gross mischaracterization” of a process meant to “safeguard the integrity” of the voter rolls.

But the first half of the hearing devolved into a back-and-forth parsing of the language the secretary of state’s office used when it advised counties on how to review the list of voters they received from the state.

Chad Dunn, one of Hilberg’s attorneys, followed Hilton’s questioning by projecting a copy of the secretary of state’s advisory onto a large screen in the courtroom and reading from the part of the document that indicated that state officials “believe” the data they provided “can be acted on in nearly all circumstances.”

“Is a reasonable reading of that sentence that this list of voters is ready to be sent notices without any further steps?” Dunn asked.

“Based on this, yes,” Reeves responded.

Dunn then asked what effect a combination of that advisory and the statements made by top Republican officials about supposed voter fraud had on Reeves' understanding of whether he needed to send those notices.

“To the best of my knowledge, that’s why my office sent that out,” Reeves said.

A week after the voter roll review was announced, Keith Ingram, a top Whitley deputy who oversees the state’s elections division, emailed county officials to say the data provided by the state was "the starting point" and that counties should review the list before sending out any notices. But last week, Ingram told state lawmakers that the secretary of state had immediately referred the list of voters to the attorney general’s office for possible prosecution because they had “reasonable cause to believe” there was a “potential felony for lying on a voter registration application.”

The court hearing is set to continue Wednesday morning, with several witnesses still expected to be called by the state and the plaintiffs. Just before the court reconvenes, some of the lawyers defending the state in court in San Antonio will partake in a conference call as part of a lawsuit against the state filed in Galveston by the American Civil Liberties Union and the Texas Civil Rights Project. State attorneys are expected to ask that court to transfer the case to San Antonio or hold off on considering the case.

That lawsuit includes a naturalized citizen who, like Hilberg, was flagged by the state after becoming a naturalized citizen.

Taking the stand Tuesday, Hilberg paused several times to contain her emotions as she explained to the court that she was “absolutely horrified” when she learned about the state’s efforts because she knew she was on the list even before she confirmed this with her county’s election administrator.

Hilberg — a native of England — had last renewed her driver’s license before naturalizing in 2015. But within a month of becoming a deputy voter registrar herself, she said she was distraught over state officials' claims that she had broken the law.

“I was deeply upset,” Hilberg said. “I felt like I was actually already being criminalized.”

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